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Free to choose: Mental retardation and reproductive choice

By Rakesh Shukla

In a landmark judgment, the Supreme Court of India struck down a high court order to terminate the pregnancy of a mentally retarded woman, against her will

The recent Supreme Court judgment reversing a Punjab and Haryana High Court order directing the medical termination of pregnancy of a young adult woman without her consent, on grounds of “mental retardation”, is a landmark decision in the area of reproductive rights. Some years ago, hysterectomies by the authorities on inmates at a mental home for women in Pune focused attention on the rights of individuals categorised as mentally ill.  

The current judgment, reported as Suchita Srivastava versus Chandigarh Administration, 2009 (11) SCALE 813, is also remarkable in that it takes on board and acknowledges that judges are also susceptible to unconscious prejudices that impact the judicial decision-making process. 

In a departure from the practice of judgments freely naming survivors/victims of crimes like rape, here, in a display of sensitivity, the name of the woman has been withheld in the judgment to avoid stigmatisation. The woman (hereafter referred to as ‘AB’) is an orphan who was abandoned by her parents at an early age and lived with the Missionaries of Charity in New Delhi. She was later admitted to the Government Institute for the Mentally Retarded in Chandigarh, and then to Nari Niketan in Chandigarh. On March 13, 2009, AB was shifted to Ashreya, a newly established welfare home. Nari Niketan and Ashreya are both government institutions run by the Chandigarh administration. 

On May 16, 2009, a medical social worker and staff nurse working at Ashreya noticed that AB was showing signs of nausea and complained of pain in the lower abdomen. In addition, she disclosed that she had missed her last two periods. A pregnancy test was carried out, which turned out to be positive. On May 18, 2009, a medical board consisting of two gynaecologists and a radiologist was constituted by the administration. It concluded that AB was eight to 10 weeks pregnant. 

After confirmation of the pregnancy, the authorities filed a first information report (FIR) with the Chandigarh police, under Section 376 of the Indian Penal Code (IPC), for rape. An ossification test conducted on the woman showed her age to be around 19-20 years. A medical board evaluating the mental status concluded that AB’s condition was that of ‘mild mental retardation’. Another multi-disciplinary medical board set up to submit its considered opinion on the consequences of continuation of pregnancy and the capability of the victim to cope with the same, on May 27, 2009 recommended the termination of AB’s pregnancy. 

As there was no clear basis in law for proceeding with the termination, the Chandigarh administration approached the Punjab and Haryana High Court seeking approval for medical termination of the pregnancy, keeping in mind that AB was mentally retarded, an orphan, and did not have a parent or guardian who could look after her and her prospective child.

The high court constituted an expert body independent of the Chandigarh administration, consisting of medical experts and a judicial officer, to look into the facts of the case. The high court framed a comprehensive set of questions to be answered by the expert body in order to ascertain the ‘best interests’ of AB. 

The broad findings of the expert body were that AB suffered from mild to moderate retardation that affected her capacity for independent socio-economic functioning and self-sustenance, and that she would need supervision and assistance. She was incapable of distinguishing between a child born before and after marriage, or out of wedlock, and did not comprehend the attached social connotations. AB knew that she was bearing a child and was eager to have one. But she was unable to understand the consequences on her own future and that of the child she was bearing. AB had limited perception about bringing up a child and the role of a mother. Although she had enough physical ability to bear and raise a child, retardation limits the mental capacity to bear and raise a child in the absence of adequate social support and supervision. AB had limited understanding of the sexual act and of the concept of getting pregnant. She did not volunteer for sex, and did not like the sexual act. AB had no particular emotions on account of the pregnancy being caused by rape. She was happy with the idea that she had a baby inside her, and looked forward to seeing it. The pregnancy did not pose any particular risk of physical injury to AB. The possibility of complications like an abortion, hypertension, prematurity, low birth weight, and foetal distress was the same in any pregnancy among women of this age-group. AB’s spinal abnormalities and gait defects were not indications of the need to terminate the pregnancy. Similarly, hepatitis B infection was not an indication for termination of pregnancy, and transmission from mother to child could be prevented. 

AB needed a congenial and supportive environment for herself and for the safe tenure of her pregnancy. Social support and care for mother and child were held to be crucial components. As to the prudent course to be followed, the expert body took the view that any decision taken keeping AB’s best interests in mind as well as those of her unborn child had to be based on a holistic assessment of physical, psychological and social parameters. 

The high court directed the termination of pregnancy by an order dated July 17, 2009. 

It was left to two public-spirited individuals to move the Supreme Court against the high court order directing termination of pregnancy. The appellant, Tanu Bedi, appeared in person on July 20, 2009, stressing urgency as AB was more than 19 weeks pregnant by then and the statutory limit of 20 weeks for termination of pregnancy was fast approaching. The Chandigarh administration made submissions in favour of termination of pregnancy. In support of the administration’s stand, senior advocate Colin Gonsalves also appeared on behalf of an intervenor. After hearing counsel and considering the opinion of medical experts, the Supreme Court granted a stay on the high court order. 

The apex court examined the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971 and noted that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer from any ‘mental illness’. The court also examined the issue of the exercise of parens patriae jurisdiction by the courts, that is, the state must make decisions in order to protect the interests of those persons who are unable to take care of themselves. It noted that the two standards for exercising this jurisdiction are the ‘best interests’ test and the ‘substituted judgment’ test. 

The court noted that a woman’s right to make reproductive choices is a dimension of ‘personal liberty’, as understood under Article 21 of the Constitution. Reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration was held to be a woman’s right to privacy, dignity and bodily integrity. Thus, restrictions could not be placed on the exercise of reproductive choice such as a woman’s right to refuse participation in sexual activity or, alternatively, on her insistence on the use of contraceptive methods. Women are free to choose birth control methods such as undergoing a sterilisation procedure. It was observed that reproductive rights include a woman’s entitlement to carry pregnancy to its full term, to give birth, and to raise children. 

In the case of AB, the state could claim to be the guardian as she was an orphan and had been placed in government-run welfare institutions. However, the claim to guardianship cannot be mechanically extended to make decisions about termination of pregnancy. The ossification test showed AB to be around 19-20 years, so she did not fall in the category of a minor. AB’s medical condition was described as ‘mild mental retardation’. Under the MTP Act, the pregnancy of a woman above 18 years of age can be terminated with the consent of the guardian only if she is categorised as a ‘mentally ill person’. As per Section 2(b) of the Act: “A ‘mentally ill person’ means a person who is in need of medical treatment by reason of any mental disorder other than mental retardation.” The court observed that it was clear that the expression ‘mentally ill person’ is different from ‘mental retardation’. 

The judgment notes that a similar distinction is found in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 where ‘mental illness’ has been defined as any mental disorder other than mental retardation. Under Section 2(r) of the Act ‘mental retardation’ has been defined as ‘a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence’. Noting that ‘mental retardation’ has been similarly defined under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, the judgment observed that persons in a condition of ‘mental retardation’ should be treated differently from those found to be ‘mentally ill’. 

The MTP Act clearly lays down that a guardian can make decisions on behalf of a ‘mentally ill person’, but this cannot be done on behalf of a person who is in a condition of ‘mental retardation’. The court observed that the state must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy. The explicit consent of a woman categorised as ‘mentally retarded’ may not be a necessary condition for continuing the pregnancy. However, obtaining consent is an essential condition for the termination of pregnancy. The court observed that AB had not given her consent to the termination of pregnancy. It held that dilution of the requirement of consent would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim/survivor.  

Coming to the exercise of parens patrae jurisdiction by the high court in ordering the termination of pregnancy, it was held that the court should be guided by the ‘best interests’ of the victim/survivor and not of other stakeholders such as guardians or society in general. The judgment observes that AB would need care and assistance, and that would entail some costs. But this could not be grounds for denying the exercise of reproductive rights. The judgment held that the high court could not use the ‘substituted judgment’ standard and make a decision on behalf of AB with regard to termination of pregnancy. 

The judgment observes that AB’s case presents an opportunity to confront social stereotypes and prejudices that operate to the detriment of mentally retarded persons. Taking note of the fact that even medical experts and judges may unconsciously be susceptible to these prejudices, the court observes that persons with borderline, mild or moderate mental retardation are capable of being good parents. Mental retardation is gauged on the basis of parameters such as intelligence quotient (IQ) and mental age (MA). It is quite possible that a person with a low IQ or MA can possess social and emotional capacities that enable him or her to be a good parent. 

Returning to the facts of the present case, the Supreme Court noted that the expert body findings were that the continuation of pregnancy did not pose any grave risk to the physical or mental health of AB, and that there was no indication that the prospective child was likely to suffer from a congenital disorder. The judgment held that termination of pregnancy without consent would not be in AB’s ‘best interests’ and that the courts could not order a termination without consent when the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority. The court noted that the chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities had submitted that the Trust was prepared to look after the best interests of AB, including assistance with childcare. Given concerns about AB’s ability to cope with the demands of carrying a child to full term, giving birth to the child, and childcare, the court directed that the best medical facilities be made available to her to ensure proper care and supervision during the pregnancy period as well as after. 

Subsequent events have shown the wisdom of the apex court’s judgment in reversing the high court order of termination of pregnancy. AB was subjected to the trauma of sexual intercourse without her consent, that is, rape, while at the state-run home. Even with consent, abortion can be a traumatic invasion of the self and the body. Subjecting AB to an abortion against her consent would have resulted in further trauma to her, with deleterious effects on her mental health. Indeed, an invasive procedure such as medical termination of pregnancy without consent is violative of the integrity of the body, an integral facet of the right to life and liberty guaranteed under Article 21 of the Indian Constitution. 

AB gave birth to a daughter on December 3, 2009. To quote Dr Raj Bahadur, director, Government Medical College and Hospital, Chandigarh, and the person in charge of Ashreya: “To be honest, even I am surprised at the tremendous maternal instincts she is showing. In fact, even her mental health has improved considerably after the child’s birth.” 

(Rakesh Shukla is a Supreme Court lawyer)

Infochange News & Features, December 2009